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Baroness Carnegy of Lour: My Lords, I should like to support this amendment. I do so mainly because I believe that the small farmer will feel desperate if nothing can be done in these circumstances. The news that he is desperate will get around among other farmers, which will badly damage the scheme. I can see from the noble Lord's face that he is very cross with me

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for intervening. However, he needs to realise that people will feel pretty desperate about this, and that is not a very nice feeling.

Baroness Byford: My Lords, I, too, support the noble Viscount, Lord Bledisloe. I talk to many different farmers, and those who live in rural areas, on my travels around the countryside. The one matter that is permanently raised is the whole question not just of crime but of an uneasiness in the countryside. I can only beg the Government to consider this sympathetically. I do not like to prejudge what the noble Lord will say; indeed, perhaps he will say that it is a great amendment and accept it. However, if he is unable to do so, perhaps he could tell us how the Government envisage coping with the problem.

I believe that all quarters of the House have accepted that it is only a small minority of people who could ruin this Bill and spoil enjoyment of the countryside for the vast majority. If such amendments as the one now before the House--which, it is to be hoped, will deal with persistent offenders--are not accepted, how will the Government make it possible for the vast majority to enjoy the countryside when just a few may well disrupt that enjoyment? I hope that the Minister will be able to accept the amendment.

Baroness Young of Old Scone: My Lords, I must voice some concern about this amendment. Although I share the view that there needs to be some provision for what I would define as "wilful and persistent offences", especially against restrictions or exclusions imposed under Chapter II of the Bill, I do not believe that this amendment would achieve that aim. It starts off well by defining all the activities that people might do persistently and wilfully, but then it seems to peter out at the end with a kind of wishy-washy back end. The issue of persistent and wilful failure to comply with restrictions or exclusions imposed under Chapter II is sufficiently serious to need something more robust than the provisions suggested in this amendment. Although I cannot support the amendment, I believe that the concerns that have been expressed about persistent and wilful infringement are very valid.

Viscount Bledisloe: My Lords, before the noble Baroness concludes, can she tell me what she would do about my "wishy-washy back end"? I am delighted to be told that my back end is wishy-washy, but it would be a great help if the noble Baroness could say what should be done about persistent offenders. I agree that my amendment may be rather wishy-washy, but I cannot persuade her Front Bench to accept anything more forceful. I should like some guidance from the noble Baroness as to what she thinks should be done about wilful and persistent offenders.

Baroness Young of Old Scone: My Lords, I understand why my noble friends on this Front Bench would be unable to accept some of the broader provisions in the first part of the amendment. It seems to me that we should not criminalise some of the failures to comply with the restrictions in Schedule 2.

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It is more important to narrow down the offences to the wilful and flagrant breaking of restrictions or exclusions that have been imposed after a very thorough process of consultation. I believe that one could narrow this down and take out the words,


    "committed an offence ... and acted in contravention of byelaws",

for which there are already clear penalties provided in law. I do not think that we need to introduce anything further to back up by-laws or situations where an offence has clearly been committed. However, as regards restrictions or exclusions under Chapter II which are aimed at preventing things from happening rather than closing the door after the horse has bolted, and where damage has already occurred, there ought to be some rather stronger sanction which does not criminalise many of the provisions of the Bill but simply focuses on specific conditions and defines in some way "wilful and persistent" and produces a criminal offence.

Lord McIntosh of Haringey: My Lords, I demand witness protection against the noble Baroness, Lady Carnegy. I did not think that I moved a muscle in my face. It is clear that I am a bad poker player. However, I do not think that I can be expected to sit on the Front Bench hour after hour with the face of a sphinx.

Surely we have already shown in response to what the noble Viscount, Lord Bledisloe, said at earlier stages of the Bill--I pay tribute to his persistence in pursuit of persistent offenders--that we have positive proposals to deal with this problem. We have shown that in our response to the amendments on wardens and in Amendment No. 96--which has just been accepted--which widens the purposes for which wardens are to be employed. We have done all of those things. We have said that we expect authorities to make by-laws when they consider that that would help.

The noble Baroness, Lady Byford, asked me how the Government would cope with these problems. The Government will cope with them in a number of ways. The authorities could use these powers even where the problems caused resulted from the actions of only one person, for example, someone who visits the land most days and always leaves the gate open. I take that to be one version of being a persistent offender. The access authority could ask a warden to patrol the area in question. The warden will be able to inform the user of their rights and their responsibilities under the new right and may, if authorised by the owner, require the person to leave the land. Any such person will lose his right of access for the next 72 hours--that is another change that we have made during the passage of the Bill--so should he return the next day he will immediately be a trespasser and the warden would be able to respond.

Local authorities have existing powers to seek injunctions under Section 222 of the Local Government Act 1972 where it is,


    "expedient for the promotion or protection of the interests of the inhabitants of their area".

I acknowledge that this does not give them the same powers as the owner of the access land would have, but it does give them powers to seek injunctions to restrain

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further conduct that would otherwise be unlawful or criminal and which is contrary to the interests of the wider community. This could include circumstances where someone persistently infringes Schedule 2 restrictions or restrictions imposed under Chapter II. We believe that the test in the 1972 Act is correct. It would not be right for local authorities to seek to enforce in the courts all cases of trespass arising under Part I. I have warned on many occasions during the course of this Bill against trying to meddle with the law of trespass which has survived many centuries of those who would wish to make it a more criminal procedure.

However, this amendment would require action to be taken--

Earl Peel: My Lords, I am not absolutely certain what the noble Lord is saying. As I understand the position, the amendment of the noble Viscount, Lord Bledisloe, simply gives the access authority powers that at the moment are vested in the owner. That in no way would allow the access authority to try to criminalise trespass, other than the fact that the perpetrator of a crime might commit a criminal offence. Trespass is still trespass and there is no criminal offence against it; it is just a question of transference of power.

Lord McIntosh of Haringey: My Lords, I shall come on to the exegesis of the amendment in a moment but it comprises a requirement. It states,


    "shall take such steps as appear to it to be appropriate".

The amendment requires action to be taken regardless of the seriousness of the breach, although it leaves unspecified what the action should be. County councils and national park authorities would be required to take action to stop any breaches of restrictions and the commission of any criminal offences. This would not be practical or desirable. It is in general for the prosecuting authorities, and in particular the police force, to enforce the criminal law and prosecute where it is right to do so.

Apart from the access authorities, the countryside bodies and others have an important role to play in dealing with persistent breaches. For example, where there is a widespread and serious problem of damage being done in an area, it may be appropriate for the relevant authorities--not the access authorities--to make a direction excluding all access under the right for at least a period. We shall debate shortly the information duty which is to be placed on the countryside bodies. Information and education will be key to ensuring that public access does not cause problems.

I appreciate that noble Lords who support the amendment have recognised that we are talking here about a small minority of the people who will enjoy, and benefit from, the right of access. That is a valuable recognition and one which brings us closer. However, I caution the House against proposing further powers against persistent offenders along the lines proposed by the amendment. All the way through the Bill we

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have adopted a light touch, both for users of the right of access and landowners. If we were to accept the amendment, surely in balance we would require access authorities to take action against landowners who wilfully and persistently obstruct or frustrate access. There are some who would like to do that, but I suggest that to criminalise what can normally and almost always be dealt with in a less severe manner would be a grave mistake.


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